Opinion
April 3, 1987
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Boomer, Green, Balio and Lawton, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following memorandum: The District Attorney concedes that defendant's convictions of criminal use of a weapon in the first degree must be reversed (see, People v Brown, 67 N.Y.2d 555, cert denied ___ US ___, 107 S Ct 1307). Accordingly, these convictions are reversed, the underlying counts of the indictment dismissed, and the sentences imposed thereon vacated.
As to the remaining convictions, defendant claims that the court erred in ordering a severance at the time of trial in violation of CPL 200.40 (1) and 255.20. We disagree. At the time of trial, one of the two codefendants had yet to be apprehended and serious identification problems existed as to the other. Under these circumstances, the trial court properly exercised its discretion pursuant to CPL 255.20 (3) in ordering separate trials (see, People v Lane, 56 N.Y.2d 1, 8; People v Rodriguez, 91 A.D.2d 591, 592; People v Pilon, 30 A.D.2d 365). We have reviewed the remaining arguments raised by defendant and find them to be without merit.